Patent simulation study concludes current patent system hampers innovation

A recently pub­lished law review arti­cle takes an inter­est­ing approach to test­ing the hypoth­e­sis that patents fos­ter innovation:

Patent sys­tems are often jus­ti­fied by an assump­tion that inno­va­tion will be spurred by the prospect of patent pro­tec­tion, lead­ing to the accrual of greater soci­etal ben­e­fits than would be pos­si­ble under non-​​patent sys­tems. However, lit­tle empir­i­cal evi­dence exists to sup­port this assump­tion. One way to test the hypoth­e­sis that a patent sys­tem pro­motes inno­va­tion is exper­i­men­tally to sim­u­late the behav­ior of inven­tors and com­peti­tors under con­di­tions approx­i­mat­ing patent and non-​​patent sys­tems. Employing a multi-​​user inter­ac­tive sim­u­la­tion of patent and non-​​patent (com­mons and open source) sys­tems (“The Patent Game”), this study com­pares rates of inno­va­tion, pro­duc­tiv­ity, and soci­etal utility.

via Patents and the Regress of Useful Arts.

ReadWriteWeb has a good write-​​up describ­ing the study and its conclusions:

The game is an online sim­u­la­tion of a pure patent sys­tem, a patent-​​free com­mons sys­tem, and a mixed sys­tem. Within each envi­ron­ment, first year uni­ver­sity stu­dents were asked to license, assign, infringe, and enforce patents. The study found that while a mixed patent envi­ron­ment and pure patent envi­ron­ment did not offer sub­stan­tially dif­fer­ent results, stu­dents in a com­mons sys­tem gen­er­ated sig­nif­i­cantly higher rates of inno­va­tion, pro­duc­tiv­ity and social util­ity. Essentially, the study sup­ports what Lawrence Lessig and free cul­ture advo­cates have been say­ing for years: a soci­ety free from intel­lec­tual prop­erty monop­o­lies is a soci­ety that is bet­ter off.

via Study says Patents Hurt Innovation.

The arti­cle con­cludes that exper­i­ments with “PatentSim” do not sup­port the gen­eral jus­ti­fi­ca­tion of our cur­rent patent system:

Data gen­er­ated thus far using PatentSim sug­gest that a sys­tem com­bin­ing patent and open source pro­tec­tion for inven­tions (that is, sim­i­lar to mod­ern patent sys­tems) gen­er­ates sig­nif­i­cantly lower rates of inno­va­tion (p<0.05), pro­duc­tiv­ity (p<0.001), and soci­etal util­ity (p<0.002) than does a com­mons sys­tem. These results are incon­sis­tent with the ortho­dox jus­ti­fi­ca­tion for patent sys­tems. However, they do accord well with evi­dence from the increas­ingly impor­tant field of user and open innovation.

This com­ports well with my own feel­ings about the patent sys­tem after research and work with intel­lec­tual prop­erty issues dur­ing and after law school. As the arti­cle points out, the Constitutional basis of our patent sys­tem is to “pro­mote the progress of sci­ence and the use­ful arts” — if this isn’t hap­pen­ing, then our sys­tem is not liv­ing up to its Constitutional man­date, and ought to be rethough (not, I think, abandoned).

Modern treaty oblig­a­tions that the United States has sup­ported might make this more dif­fi­cult to accom­plish, since now we are also bound by inter­na­tional oblig­a­tions as well as con­sti­tu­tional ones (although the courts con­sis­tently say the Constitution trumps inter­na­tional treaties and agree­ments). But sim­ply because change is dif­fi­cult does not mean we shouldn’t con­sider it — and doing so may well ben­e­fit us and encour­age busi­ness and innovation.

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